The purpose of this initiative is to identify whether Council decision-making and NMFS review and regulatory processes should be made more dynamic to respond to rapidly changing environmental conditions. This initiative is intended to respond to the CCI goal to develop and implement strategies for improving the flexibility and responsiveness of our management actions to near-term climate shift and long-term climate change.
A dominant theme emerging from the CCI scenario planning exercise was interest in developing a more flexible fishery management process. Flexibility encompasses two ideas, both affected by procedural limits: the potential scope of action and the speed at which it occurs. If climate change presents novel situations that arise rapidly and may be ephemeral, both scope and speed are of the essence. Assessing how the management process could be improved will require an understanding of both statutory and bureaucratic constraints at the Federal level. Since tactical decisions are implemented through regulation, one must understand the limits imposed by the Administrative Procedure Act and its judicial review provisions (Gaffney 2020). Understanding existing process constraints is key to finding flexibility in both other procedural requirements like those of the National Environmental Policy Act and Regulatory Flexibility Act and in statutory requirements derived from the MSA, Endangered Species Act, Marine Mammal Protection Act, and other legislation. Beyond these statutory constraints, bureaucratic processes usually require review at multiple organizational levels. Finally, decision-making itself may be protracted, especially for controversial and complicated actions.
To begin this initiative, the Council could first ask for background research from Council staff working together with NOAA General Counsel, and with regulatory process experts from NMFS and from states and tribes participating in the Council process. Draft reports on that research would be made available to the Council, its advisory bodies, and the public, to provide opportunities for fisheries participants to share their knowledge on regulatory processes that constrain flexibility in fishing operations.
Case study or scenario planning methods would be used to identify feasible, more flexible management processes, drawing on Bell et al. 2021, which outlined flexibility in the Council’s FMPs. The case study approach evaluates past decisions while scenario planning evaluates plausible futures. Exercises for this initiative, whether retrospective or prospective, would focus on a single scenario in terms of the resource(s), fisheries, and fishing communities involved. These methods would be used to examine the current management response to a specified perturbation and explore alternatives. This would be the basis for identifying choke points in the management process. Once those are identified, alternative processes, feasible under statutory constraints, could be described. The scope of the environmental effect in time and space would need to be assessed to determine whether there is in fact a mismatch between it and the responding management intervention.
Case studies or scenarios could focus on management interventions like (but not limited to):
- Allocation of harvest opportunity due to a change in the distribution of a stock.
- Bycatch mitigation due to a change in the distribution of a stock or stocks. Increased bycatch could occur because of the appearance of the bycatch stock in the fishery or because of a shift in the geographic range of the fishery in response to a change in target stock distribution.
- Changes to fishery participation limits (increase or decrease) due to a transboundary shift in stock distribution.
- Measures to mitigate the effects of the permanent depletion or commercial extinction of a stock.
- Use of exempted fishing permits to promote innovation given impacts from changing ocean conditions.
In a case study approach, it would be necessary to identify a proximate environmental change (e.g., change in stock status) that may be attributed to climate change or meso-scale variability. The case study subject should also include effects such as marine heat waves that are likely to occur at higher frequency in the future due to climate change. Similarly, scenarios need to have a plausible basis. Climate change-related impacts to stocks or fisheries should be derived from quantitative or qualitative projections of the interplay between physical drivers and the affected stock(s). This initiative would be relevant to FEP objectives 1b, 3c, and 6c.